SUDHANGSHU SAKKAR PAUL Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) IN this reference under S. 236(1) of the IT Act, 1961 ('the Act') for the asst. yrs. 1980-81 and 1981-82 the following question of law has been referred to this Court.

(2.) SHORTLY stated, the facts are that the assessee , an individual, is a partner in the firm Gopinath Paul & Sons which is a registered firm. For the asst. yr. 1980-81, the ITO added a sum of Rs.42,853 to the income of the assessee, being the allocated share from the aforesaid firm falling in the assessee's share. For the asst. yr. 1981-82 also, the ITO added a sum of Rs. 67,464 to the income of the assessee, being his share of profit from the aforesaid firm. For both assessment years the assessee appealed to the AAC before whom it was pointed out that the income from the partnership firm and the extent of the assessee's share in the firm is subject to litigation before the Calcutta High Court and that the assessee had not received any share from the firm. The AAC directed the ITO not to include income from the partnership firm in the total income of the assessee. It was further observed by the AAC that in case the High Court decides that the assessee had ascertained share of profit from the firm, the ITO could rectify his order under S. 154/155 of the Act as per decision of the Calcutta High Court. For the asst. yr. 1981-82 also the AAC deleted the share income from the firm Gopinath Paul & Sons and directed the ITO to take appropriate action on the decision of the suit pending before the High Court.

(3.) AT the hearing Mr. Bhattacharyya, the learned counsel appearing for the assessee, has contended firstly that the Tribunal did not advert to the facts and circumstances of the case in coming to the conclusion as it did. On the basis of the submissions of the counsel appearing for the assessee before the Tribunal the Tribunal recorded its finding that the assessee was maintaining accounts on mercantile basis. He has also submitted that from the order of the Tribunal it would appear that the suit was filed for dissolution of the partnership firm and after the suit was filed there could not be any assessment of the firm as registered firm, nor was there any question of allocation of any income in the hands of the assessee. We are afraid in this advisory jurisdiction we cannot bring in new facts; we are bound by the facts found by the Tribunal. Since none of the findings has been challenged before us, we have to proceed on the basis of the facts found and/or admitted by the Tribunal. However, our answer to the question in this reference on the basis of the facts found by the Tribunal will not prevent the assessee to challenge the assessment order in the case of the firm or the assessment made in this case being without jurisdiction or in excess of jurisdiction if the assessee is so advised and is entitled in law to do so.